When a loved one passes away, their estate is usually distributed according to their wishes as set out in their will. This principle, known as the freedom of testation, allows individuals to decide how their assets are allocated.
While a person can decide how to distribute their estate, they also have legal responsibilities. Some people, usually close family or dependents, may have relied on the deceased for support. If these “eligible persons” feel the will doesn’t give them enough, they may be able to make a legal claim.
The law provides a formal process to challenge a will and seek fair provision from the estate, known as a Part IV claim. Understanding who can contest a will, the process involved, and the factors the court considers is essential for families navigating these sensitive matters.
Who is an eligible person?
An eligible person is someone who may have the right to contest a will if they believe they have not received adequate provision. In Victoria, eligible persons include:
- Spouses or domestic partners of the deceased at the time of death;
- Children of the deceased, including adopted children, stepchildren;
- Persons who were treated as a natural child by the deceased for a substantial period of time;
- Former spouses or domestic partners under specific circumstances, especially if they would have been able to take proceedings Family Law proceedings or they could not be completed due to the death;
- Registered caring partners of the deceased;
- Grandchildren of the deceased; and
- Household members who resided with the deceased at the time of death.
The law is broad to cover modern family arrangements, such as blended families, non-traditional partnerships, and households with long-term dependents. If you don’t fall into these categories, you cannot make a claim against an estate.
When can you contest a will?
Time is a critical factor when considering a claim. Generally, claims must be made within six months of the grant of probate if the deceased left a will or letters of administration if the deceased did not leave a will.
There are limited exceptions where the court may allow claims outside this period, but only if the estate has not yet been fully distributed. Acting promptly is crucial because once the estate is distributed, the legal options to contest it become far more restricted.
How does the court evaluate a claim?
It is important to understand that the court does not have the authority to simply rewrite a will or create what might seem “fair.” Instead, the court’s role is to determine whether the deceased had a moral duty to provide for the eligible person and whether the will fails to make adequate provision for their proper maintenance and support.
When assessing a claim, the court will consider:
- The deceased’s intentions, as expressed in their will or other evidence.
- The relationship between the deceased and the eligible person, including its nature and duration.
- The size and nature of the estate, including liabilities.
- The financial needs and resources of the eligible person, other beneficiaries, and the deceased at the time of death.
- The age, health, and any disability of the eligible person or other beneficiaries.
- Contributions made by the eligible person to the deceased or the estate, including unpaid work or care.
- Any benefits previously provided by the deceased.
- The potential impact on other beneficiaries of the estate.
The court ensures that any provision made does not exceed what is necessary for the proper maintenance and support of the eligible person. This means that success in a claim is closely tied to demonstrating genuine financial need rather than simply seeking a larger share of the estate.
What to do if you want to contest a will
For anyone considering a claim, it is important to:
- Seek legal advice early – the six-month window is strict, and navigating the legal process is complex and takes time.
- Gather evidence of financial need and the relationship with the deceased. This may include bank statements, records of care provided or evidence of dependence.
- Consider the overall context of the estate, including other beneficiaries, liabilities, and previously provided benefits.
Amicable discussions among family members can sometimes resolve disputes without going to court, helping to avoid costly fees and lengthy proceedings. However, legal guidance is still essential to ensure that any agreements reached are valid.
It is important to weigh the potential risks seriously as these claims can be lengthy and costly, and there is no guarantee of a favourable outcome. If the claim is unsuccessful, you may be required to pay the legal costs of the other party. Careful evaluation and professional guidance are essential to determine whether pursuing the claim is a prudent course of action.
Moving forward
Given the complexity of Part IV claims, seeking legal advice is highly recommended if you are considering making a claim. An experienced estate lawyer can provide guidance on the strength of the claim, the documentation required, and the procedural steps involved, helping you make informed decisions during what can be a challenging time for families.
